When a union, wanting to pressure an employer, sought protected action orders allowing reference to industrial action in any e-mails staff sent to clients, it didn’t bank on the Fair Work Commission ruling against them. And it got worse for the union. On appeal, a full bench of FWC agreed with the original ruling, which meant that the attempt to use protected industrial action orders to send embarrassing e-mails had failed.
The union wanted the FWC to sanction a series of specified actions which it would be entitled to take in furtherance of its bargaining campaign for an enterprise agreement. One of the items on its list involved staff delaying their response to e-mails. Then, when they did respond, they would add to the message the reason why it was late – namely, that there was a dispute.
This particular activity has the effect of casting the employer in a poor light. And making the employees (union members) look good – that they are continuing to service their clients, despite their ‘oppressive’ employer’s recalcitrance at the bargaining table.
But the FWC full bench wasn’t having any of it. It succinctly put its view that this activity “would appear to involve the performance of work in a manner different to the manner in which it is customarily performed because it is unauthorised, not approved and inconsistent with normal practice.”.
And that is in fact the nub of the matter. The principle is that activities which are effectively not normal or part of the usual day to day tasks will not constitute “protected action” as that term is used in law. This is useful to prevent so-called soft industrial action, where employees do something differently which damages the employer, but does not require the employees to go on strike – so they still get their pay.
Employers should be alert to these attempts at industrial tactics designed to harm them but not cost the employees taking the industrial action. If that situation is allowed to occur, it means there is little incentive for the employees to cease action and get back to work, and presumably, negotiations without duress. The tactic must be stopped at source as was done in this case, before the FWC Orders were made.